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David Scott warns of profession’s global warming equal

As far as David Scott is concerned, access to justice is the legal profession’s equivalent of global warming.

‘It’s not easy to find pro bono help,’ says David Scott.

The issue was the subject of the William Howard memorial lecture that Scott, co-chairman of Borden Ladner Gervais LLP and counsel with the firm’s Ottawa office, delivered at the University of Calgary on Thursday.

It’s not a new subject for him. Just about anyone who knows him is familiar with his commitment to the relationship between pro bono legal services and access to justice.

“It’s definitely my hobby horse,” Scott tells Law Times. “My focus will be on the plight of low- and middle-income Canadians; the challenges they face in securing access to justice in an increasingly complex society, including the high cost of legal services; and the response of the organized bar in facilitating that access.”

Scott, in an interview in advance of the lecture, is careful to add that despite these problems, there are many lawyers practising alone or at smaller firms who are committed to accessibility at a modest cost.

“As it turns out, there is a significant body of professionals dedicating themselves to ameliorating the situation,” he says.

Nevertheless, the fact remains that the Internet has empowered the public to the extent that lawyers and the law don’t intimidate individuals as much as they did in the past.

The result is that many people have developed a do-it-yourself attitude that has resulted in more self-representation in the courts.

“You can’t stop it because self-representation is a right,” says Scott. “On the other hand, most individuals who act for themselves have an unwarranted overconfidence that can and has created chaos in many courtrooms.”

The profession, Scott argues, needs to confront this situation and has begun to do so by making changes in the procedural rules that allow, for example, for the unbundling of legal services.

“This means that a party can engage me for a summary judgment motion, pay me, and then I go home until the client needs me again,” says Scott. “In a perfect world, they would engage me to do the trial if it comes to that.”

As Scott sees it, clients can bear the burden of many procedural and practical steps such as assembling documents.

“There are lawyers in the United States who are making a living out of limited-service representation,” he says.

“And if this became part of our culture, lawyers would continue to represent the bulk of society and our courts would not be in danger of falling into complete disarray.”'

But the solution isn’t that simple, of course. “You’d need a whole lot of pro bono commitment,” says Scott. “Limited service works whether you have some money or no money, except that if you have no money, you have to find someone offering even the limited service pro bono.”

In Scott’s view, Ontario lawyers are doing a “damn good job” of offering pro bono services across the province.

The difficulty is the lack of co-ordination among the various pro bono programs.

“It’s not easy to find pro bono help,” he notes. “I suppose you could go to various firms but then you’d have to get past the receptionists.”

Scott points to the approach of Law Help Ontario, an award-winning service operated by Pro Bono Law Ontario, as a starting point for solving the problem.

Law Help Ontario operates self-help centres in Toronto and Ottawa for low-income self-represented litigants appearing in the Superior Court and the Small Claims Court.

Lawyers at Law Help Ontario centres provide free assistance for non-criminal and non-family civil law matters.

“The [Law Help Ontario] offices have space designed for self-represented litigants who must pass an economic screen,” says Scott.

“Qualified individuals have access to the Internet, to relevant forms, and to the assistance of pro bono duty counsel who are there seven hours a day, five days a week.”

Each office also has a roster of lawyers available for limited-service representation.

Scott would like to see an expansion of Law Help Ontario to all major centres in Ontario at offices equipped with useful technology, an appropriately trained technical staff, and lawyers who would come from the private law firms.

“Apart from the lawyers, technology is at the root of success of this concept,” he says.

There must be some onus placed on the larger litigants in these cases, which are able to extend and delay a matter, all in an effort to rack up large legal bills for the smaller litigant thus discouraging the average joe from pursuing their legal remedies.

Perhaps some regulation with regards to Civil Procedure would assist in leveling the playing field for all, not just those with deep pockets.

We need a sea change in civil litigation culture and to prevent regulators from stomping on lawyers who can deliver basic legal services. Over 96% of cases settle, which means plaintiff's counsel should avoid filing when they can negotiate, and move directly to discoveries in medical malpractice cases.

I have over 40 years of trial experience. In all of that time the biggest impediment to access to justice is our cost system. The playing field is not even when you put an individual with limited resources up against an insurance company and in particular th CMPA which proceeds to trial in almost all cases.I recently had a case of a woman who lost her Kidney during an operation through the negligence of the surgeon. She worked and had a home with equity. I had a good opinion showing negligence. The CMPA lawyer had an opposite opinion.Is she lost the case she would lose her home. The case was not worth much because she still had one good kidneyShe ran the risk of a trial and fortunately we prevailed but in many other cases my client has not wanted to take the risk. They lost their access to justiceLets leave costs up to the discretion of the trial judge

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Law Times Poll

Lawyers say that the federal justice minister’s response to recommendations by a House of Commons committee on how to improve legal aid in Canada is disappointing. Is more funding needed beyond what was promised in the recent federal budget?

Yes, the federal government’s response is inadequate given the scope of the issues.

No, the federal government is doing a good job of balancing competing funding demands.